Can same-sex partners together adopt a child in Massachusetts?

How does a court generally go about making custody determinations?

When a married couple with children divorces, a court considers both parents as equals (unless one has engaged in misconduct) and makes a custody determination based on the best interests of the children. A court will weigh all relevant factors, including whether one parent has a more stable work schedule, where siblings are being raised, and whether one parent seeks to undermine the child’s relationship with the other parent (see, e.g., Hunter v. Rose 463 Mass. 488, 495 (2012). See also Mass. Gen. Laws, chap. 208, sec. 31 (“the court shall consider whether or not the child’s present or past living conditions adversely affect his or her physical, mental, moral or emotional health”)).

When unmarried parents separate, the rules are different. Although the court is still bound to act in the best interests of the child, it is also required to preserve the relationship between the child and the primary caretaker parent when awarding custody (Mass. Gen. Laws, chap. 209C, sec. 10). Furthermore, unmarried parents cannot be awarded joint custody unless they have agreed to do so or the court finds that they have successfully exercised joint responsibility for the child in the past and have the ability to communicate with each other about the child’s interests (Id).

Are there different kinds of custody?

Yes (Mass. Gen. Laws, chap. 208, sec. 31). Four kinds:

“Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.

“Shared legal custody” means that both parents are involved in and make these decisions.

“Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.

“Shared physical custody” means that the child resides with both parents in a way which ensures frequent contact with both.

If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my “sexual orientation” against me in custody proceedings?

As stated above, Massachusetts courts base custody arrangements on the best interests of the child. As a general rule, a parent’s sexual orientation or marital status should have no bearing on a child’s best interests (see Goodridge v. Dep’t of Pub. Health, 440 Mass. 309, 335. See also Doe. v. Doe, 16 Mass. App. Ct. 499 (1983) (parent’s sexual orientation insufficient grounds to deny custody in divorce action); E.N.O. v. L.M.M., 429 Mass. 824, 829-830 (1999) (best interests of the child determined by considering child’s relationship with biological and de facto same-sex parents)).

Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to a child. Any number of reasons can be cited, such as that the LGBT parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a bad role model, or that the parent’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way that does not penalize the LGBT parent or the child. Contact GLAD for further resources for dealing with such a situation.

Does it matter if my “ex” knew I was gay or lesbian or might be before we separated?

It can make a difference with respect to future modification of court orders for custody. People can seek to modify court orders for custody only when there has been a substantial change in circumstances. If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, they may argue that this is a substantial change of circumstances and the custody issues should be litigated anew (see generally, Mass. Gen. Laws, chap. 208, sec. 31).

Can a court keep my kids from visiting when my partner is present?

Courts have the power to do this, but unless the partner is causing harm to the child – a very high standard – visitation should not be restricted.

What standards should same-sex couples with children who are breaking up maintain?

Same-sex couples with children who are breaking up should:

Support the rights of LGBT parents;

Honor existing relationships regardless of legal labels;

Honor the children’s existing parental relationships after the break-up;

Maintain continuity for the children;

Seek a voluntary resolution;

Remember that breaking up is hard to do;

Investigate allegations of abuse;

Not allow the absence of agreements or legal relationships should not determine outcome;

Treat litigation as a last resort; and

Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.